Do You Need a Prenuptial Agreement?

When you are engaged to the love of your life, prenup might seem like a dirty word that no one wants to be the first to say. Unfortunately, with one in three marriages ending in divorce (one in two for second or third marriages), having a prenuptial agreement might be a smart move. Or at least, your parents might think it is!

What is a Prenuptial Agreement?

A prenuptial agreement is a contract between two people about to marry that spells out how assets will be distributed in the event of divorce or death. Nancy Dunnan, a New York City financial adviser and author, advises couples to think of it as a business arrangement or as an insurance policy. “Marriage is not just an emotional and physical union — it’s also a financial union. A prenup and the discussions that go with it can help ensure the financial well-being of the marriage.” (Bankrate.com)

Does everyone need a Prenup?

Although some people think that prenuptial accords are only for the rich, even those who have worked hard to save a nice nest egg may want to protect their assets. Bankrate.com thinks that you should consider having a prenup if you fall into any of the following categories:

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You have assets such as a home, stock or retirement funds

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Own all or part of a business

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You may be receiving an inheritance

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You have children and/or grandchildren from a previous marriage

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One of you is much wealthier than the other

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One of you will be supporting the other through college

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You have loved ones who need to be taken care of, such as elderly parents

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You have or are pursuing a degree or license in a potentially lucrative profession such as medicine

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You could see a big increase in income because your business is taking off, or that garage band you play in has just gotten a contract with a big record company.

How do I bring it up?

Since this is a touchy subject, some sensitivity will be necessary! Of course, it might be that your fiance has thought about it too, but is too scared to bring it up himself! In this case you’re off to a good start.

It is probably best to bring it up as early as possible, maybe even before you are engaged. If you and your other half have been open and honest with each other about other things, then it should hopefully not come as a huge shock that you want to discuss a prenup as well.

Carley, Editor-in-Chief at The Knot points out that there are actually some perks to broaching this uncomfortable but sometimes necessary topic. Her advice is to first remind him that prenuptial agreements actually allow you as a couple to decide what will happen to your cash in the event of a death or divorce, rather than leaving those decisions up to a judge. You can also point out that drawing up a pre-nup forces couples to face their finances and start planning for the future — something most newlyweds don’t start to think about for years. In the process of this discussion you may both learn important things about each other that you didn’t know before!

How do we write it up?

You will both have to fully disclose your assets and sources of income (from your job or business, or monetary gifts like an inheritance). Talk about why you want the prenup and what each party’s concerns are. Once everything is on paper, you and your lawyers will decide together how it will be divided up. Bankrate.com advises that you each have your own lawyers who will co-write the agreement with their clients’ best interests in mind.

Some things to keep in mind when writing a prenuptial agreement:

Honesty. Both parties must FULLY disclose their assets. If a judge detects that either person has hidden something, he can toss it out the window.

It should be signed at least a month before the wedding, and preferably before you send out invitations. This is in order to avoid the appearance of coercion, another key reason why some agreements are rendered null and void.

Fairness. A valid prenup should not have one spouse taking advantage of the other. If it goes to court, a judge will look for equity in your agreement.

Avoid making frivolous demands. Requiring that your spouse not gain weight, or that he take out the garbage three times a week may not be taken seriously. Weighty subjects, such as stipulating what religion your children will observe if you and your betrothed are of different faiths, can be included.

Create a contract that is as formal as possible. Use a matrimonial lawyer who is familiar with prenups and the laws of the state in which you will be living.